123 N.E.3d 791
Mass. App. Ct.2019Background
- Defendant, a frequent morning customer at a Dippin' Donuts, approached the victim (a server) on her cigarette break, asked for a hug/kiss after she refused, reached around and squeezed her buttocks, and she pushed him away.
- Defendant followed her into the store, attempted to buy cigarettes for her despite her refusal, then moved his car and repeatedly pulled down his pants and underwear in the parking lot, exposing his buttocks to customers and employees.
- Victim described being "very, very distraught" and frightened; a coworker called police; officer arrested defendant after speaking with witnesses and defendant's equivocal statement about removing an outer sweatshirt.
- Defendant was convicted by a jury of indecent assault and battery (on a person age 14 or over), open and gross lewdness, and disorderly conduct (the latter placed on file). Sentences imposed on two counts; defendant moved for new trial and for findings of fact, both denied.
- On appeal, defendant argued insufficient evidence for open and gross lewdness, ineffective assistance for failure to request lesser-included assault and battery jury instruction, judge's failure to make written findings on the new-trial motion, and allegedly deficient indecent-assault jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for open and gross lewdness | Commonwealth: repeated, intentional public exposure of buttocks produced objectively reasonable shock or alarm to onlookers given prior assault on victim | Melo: exposing buttocks while "dancing" at a distance would not objectively shock or alarm ordinary adults | Affirmed: evidence sufficient; victim and coworker reactions were objectively reasonable under Maguire standard |
| Ineffective assistance — failure to request lesser included assault and battery instruction | Commonwealth: trial counsel reasonably pursued defense that no touching occurred; no evidentiary basis for lesser instruction because only evidence of touching was to buttocks (indecent), so omission not ineffective | Melo: counsel's failure deprived him of an available substantial defense | Denied: counsel not ineffective; request would have had minimal chance of success (Saferian standard) |
| Trial judge's failure to make written findings on new-trial motion | Commonwealth: record and hearing sufficiently show reasons for denial; no manifest injustice | Melo: judge failed to provide required findings under Mass. R. Crim. P. 30(b) | Denied: no reversible error; ultimate conclusion evident from record and no substantial risk of miscarriage of justice |
| Alleged deficient jury instruction on indecent assault and battery | Commonwealth: model instruction adequately defined "indecent" and private areas; defense requested the instruction | Melo: instruction listed body parts and gave hypothetical mirroring accusation, improperly guiding jury and failing to convey moral element | Affirmed: no error; instruction appropriate and defendant requested it; no miscarriage of justice |
Key Cases Cited
- Latimore v. Commonwealth, 378 Mass. 671 (1979) (standard for reviewing sufficiency of the evidence)
- Maguire v. Commonwealth, 476 Mass. 156 (2017) (elements of open and gross lewdness and objective-reasonableness requirement)
- Taranovsky v. Commonwealth, 93 Mass. App. Ct. 399 (2018) (application of Maguire objective-reasonableness to jury determinations)
- Ora v. Commonwealth, 451 Mass. 125 (2008) (§ 16 regulation of lewd conduct is conduct regulation, not protected expression)
- Saferian v. Commonwealth, 366 Mass. 89 (1974) (standard for ineffective-assistance claims on motions for new trial)
- Kennedy v. Commonwealth, 478 Mass. 804 (2018) (definition of indecent assault and battery)
- Mosby v. Commonwealth, 30 Mass. App. Ct. 181 (1991) (touching private areas can constitute indecent assault and battery)
- Lavigne v. Commonwealth, 42 Mass. App. Ct. 313 (1997) (model jury instruction language approvingly cited regarding private areas)
- Alcequiecz v. Commonwealth, 465 Mass. 557 (2013) (counsel not ineffective for failing to pursue arguments with minimal chance of success)
- Torres v. Commonwealth, 469 Mass. 398 (2014) (when absence of written findings is harmless and no manifest injustice results)